Excerpt:
- section 115: [tarun chatterjee & h.l.dattu,jj] revision against order of appellate court upholding eviction - dismissal on ground that fact of rejection of application for additional evidence by appellate court was not brought to its notice held, it is improper. revisional court cannot not reject petition on such ground without going into merits of case. .....several circumstances which throw a doubt with regard to the appellant being the author of the gun shot injury received by the injured, sansar singh. firstly, the first information report was lodged after a delay of three days, although it was admitted, that the injured person was conscious throughout after the receipt of the injury. secondly, the gun shot injury was on the back of the victim and in his deposition he did not say that immediately after the receipt of the injury he turned back and seen his assailant. of course, the courts below have imagined this explanation, which the injured himself had not chosen to put forth. the third circumstance which enhances the suspicion about the identity of the assailant that the victim's statement was recorded by the police under the crpc 17.....

Judgment:

R.S. Sarkaria, J.

1. Leave granted.

2. After hearing both sides we are of opinion that the appellant's conviction cannot be sustained. There are several circumstances which throw a doubt with regard to the appellant being the author of the gun shot injury received by the injured, Sansar Singh. Firstly, the first information report was lodged after a delay of three days, although it was admitted, that the injured person was conscious throughout after the receipt of the injury. Secondly, the gun shot injury was on the back of the victim and in his deposition he did not say that immediately after the receipt of the injury he turned back and seen his assailant. Of course, the courts below have imagined this explanation, which the injured himself had not chosen to put forth. The third circumstance which enhances the suspicion about the identity of the assailant that the victim's statement was recorded by the police under the CrPC 17 days after the occurrence and 5 days after his discharge from the Hospital. No explanation of these delays is coming forth. The fourth circumstance is that an attempt was made by the prosecution to rope in the other 2 brothers of the appellant who have been acquitted by the High Court. Fifthly the conviction rests mainly on the uncorroborated testimony of the injured. His father (PW 1) who had lodged the report came after the incident and was not an eye-witness of the incident. PWs 3 and 4 who were cited as eye-witnesses in the F.I. R., did not support the prosecution case at the trial, Sixthly, there was past enmity between PW 1 and his son (PW 2) on one side and the appellant and his brothers on the other. The occurrence took place after dusk at about 7.30 p.m.

3. In view of the circumstances mentioned above, we are of the opinion that the charge had not been brought home to the appellant beyond reasonable doubt. The appeal is accordingly allowed, the conviction of the appellant is set aside and he is acquitted. His bail bond is discharged.